A blog dedicated to exploring the practice of law before the internet. Heck, before good interstate highways for that matter.

Monday, May 30, 2016

The Curious Case of Judge Neely

Ruth Neely is a Pinedale town judge in Pinedale. She also serves as a "Circuit Court Magistrate" (court commissioner?) in Sublette County. I've never met her and really have no idea of who she is, save for the fact that she's in the news.

She's in the news as a reporter for the Pinedale Roundup called her the day after the U.S. Supreme Court, pretty clearly departing from an orthodox reading of the Constitution, found a right for people of the same gender to marry each other, even though such a right had not been conceived of in human history up until about the past twenty or so years.

At that time, I was pretty concerned that the decision would have dire consequences. No matter what a person thinks of same gender marriage, the Supreme Court's decision was, quite frankly, outside the law. Decisions by high courts that are outside the law inspire contempt for the court, and frankly when people look out now and wonder "how could Donald Trump have gotten so far?", they can in part thank Anthony Kennedy and his fellow travelers. This is the year of contempt for established authorities and the Supreme Court has contributed to that. Trump has stated he'd appoint judges that would reverse Obergfell, and he likely would. For some, that's all the more they need to vote for Trump.

But that's besides the point here.

The point here is what happened to Judge Neely.

Neely, in her role as a jurist, has the right, but not the duty, to perform marriages. The Pinedale Roundup, in a role that sort of doesn't pass the smell test, asked her if she was excited about being able to preform same gender marriages. She replied that she didn't think she could, due to religious objections.

Now, note here first that under Wyoming's law, she doesn't have to perform any marriage.

Note also, of course, that she didn't think she would now omit doing marriages entirely, but rather she'd omit doing same gender marriages, maybe.

That lead to the Wyoming Commission on Judicial Conduct and Ethics recommending her removal, and that's now before the Wyoming Supreme Court.

Now, on first blush, this all seems rather simple, and peoples' views tend to boil down to their view on same gender marriage. Those who oppose it feel that this is a free exercise of religion issue, and that Neely is being persecuted for her beliefs. Those who don't care about that issue or who favor same gender marriage feel that if Neely can't preform those sorts of marriages, she ought to resign or be removed.

But the question is a lot, lot, trickier than all of that, and a lot more important.

First of all, the law doesn't say that Neely has to perform any marriage. Apparently she does, rather obviously, but she isn't required to. So, presumably (but not clearly) if Neely had stated, and maybe she should, that she was no longer going to perform any civil marriage, this issue wouldn't exist at all. That's not entirely clear, as maybe she still would have faced sanction, but there is clearly an issue here as if she feels she can preform some marriages, but not others, even if the law allows them to be preformed, she is exercising some sort of prejudice of a type, no matter what you think of it.

Indeed, a person might say that at one time some people objected to marriages between blacks and whites. Could a judge refuse to do inter racial marriages? Pretty clearly not. And that's the argument generally made.

Of course, the problem with that argument is that the concept of marriage dates back to vast antiquity and as far as we can tell, it's been with us for all time in all cultures. And, for all time and in all cultures, marriage has been defined as being between opposite genders. That's the unifying element of it. In some cultures women have had somewhat equal rights with men in marriage. In some they have had no rights. In some cultures men can marry more than one woman simultaneously. In most they are limited to one. In a very few cultures a woman can simultaneously marry more than one man. In some cultures the concept of divorce is common, in others its frowned on or, at least up until the last century, disallowed. But it always has involved members of opposite gender.

Indian couple, from our earlier thread Et Ux. We can easily recognize this couple as a married couple with little explanation needed, including no explanation on their religion or culture.

So here, Neely is being cast away, maybe, for having the view that the majority of human beings have had for human history, and indeed the view that the majority of human beings have right now. Under the common concept of the natural law, which ties marriage the concept of protecting natural born children, she's 100% correct.

All that makes this not really comparable to concept such as a person shouldn't marry outside their race, or culture, etc., which is another matter. That members of different races can create children is obviously well established. So, again, under natural law principals prohibitions on members of different races marrying is unnatural, and invalid. Under natural law principals, marriages between members of the same gender strain for a reason to exist, and the U.S. Supreme Court had to come up with fuzzy and legally unsupportable reasons based on human affirmation, which isn't a point of the law.

All of which makes this tricky.

And trickier still if you start to make other analogies based upon moral objections.

If Neely were a district court judge, for example, and felt that the death penalty was immoral and that she couldn't serve on a trial in which the death penalty was being asked for, as it would potentially morally implicate her in a killing contrary to her beliefs, would she be ineligible to serve as a judge and subject to the same penalty, or could she simply recuse herself? I suspect that this question would never come up in that case as most people would simply say that she could recuse herself. What about those sometimes celebrated instances in which judges have refused to impose harsh sentences, or sentences they deemed harsh, under the Federal sentencing guidelines. Almost every Federal judge hates them. Instances of judges refusing to impose them aren't everyday affairs, but they aren't uncommon either. Should the judges be impeached? Most would say certainly not.

All of which further goes to show that what we regard as an act of bigotry and what we regard as something we tolerate, let alone something we regard as proper for an office and what we otherwise regards as disqualifying a person to hold that office is really tricky.

By way of an example, back in the 1970s and early 1980s, the Army allowed Sikh soldiers to grow beards, as they must in keeping with their religion's requirements. But then the Army started to prohibit that, citing the need to be able to seal a gas mask, which a beard apparently prohibits. Now the Army has started to allow bearded Sikhs once again, which I think they should, but was the Army's middle policy bigoted? A person would hate to die in a gas attack and troops would suffer if their CO did. And where does that stop? Some Central Asian religions prohibit the cutting of hair entirely. Should the Army accommodate that? Some require special headgear. Should the Army accommodate that? Actually, the beards, long hair, and headgear item all apply to Sikh's and the Army is accommodating all of that (and again, I'm glad they are).

Does the same logic extend to jurists? If a person feels the death penalty is immoral, is that something that should be accommodated if they are a jurist? What about those who sincerely believe that same gender marriage is inappropriate, should they be allow to opt out of performing them? And indeed, at what point is society saying, on one hand, "anything ought to be tolerated", but then on the other, "traditional Christian, Islamic, and Judaic positions on morality are not to be accommodated", all applying to official positions. Clearly, in the last instance, it would seem that Justice Kennedy was of the view that this issue could be ignored in public office to the determent of those holding that view.

All of which shows how tricky it is perhaps to have anyone with strong beliefs now hold public office. A person has to have the bowl of oatmeal view of such items that Kennedy does, apparently, to hold public office. And is that a good thing? It wouldn't seem so.

Lex Anteinternet?

This blog has been around since 2009. In the very first post, we asked the question: "What the heck is this blog about?"

Our answer to the question was: "The intent of this blog is to try to explore and learn a few things about the practice of law prior to the current era. That is, prior to the internet, prior to easy roads, and the like. How did it work, how regional was it, how did lawyers perceive their roles, and how were they perceived?"

We also noted: "Part of the reason for this, quite frankly, has something to do with minor research for a very slow moving book."

All of this is still true, but the focus of the blog has changed somewhat. It now focuses on the era from 1890 to 1920 in general, rather than on the law and lawyers specifically, although that may be far from obvious. It's also become the location where we comment on anything we feel moved to comment on.

We hope you'll feel moved to comment as well. While we moderate every comment, so as to weed out Spam, we greatly appreciate the comments where they are offered, and hope to see more.

Thank you for stopping in!

On This Day In Wyoming History

In addition to being the frequent blogger here, I'm also the author of On This Day In Wyoming History, a book cataloging the daily history of Wyoming. More on that book can be discovered by following the link.

I'm also the author of a number of articles that have been published by various journals, including The Wyoming Lawyer and Rural Heritage. Topics of my published articles range from legal and agricultural topics to historical topics.